The Wife's Testimony Revisited

Yevamot (15:2) | Yisrael Bankier | 7 years ago

The fifteenth perek opens with the case where a couple went overseas and the wife returns alone claiming her husband died. The Mishnah rules that if there was no animosity between them and there were no wars at the time, then she is believed and thereby allowed to remarry.

Ordinarily, we required two witnesses. We have discussed previously (Volume 3 Issue 6 and Volume 9 Issue 9) the basis on which in this case, the wife's sole testimony is accepted. From the second Mishnah, Beit Hillel teaches that an incident was the precursor for this decree. Several people were going to harvest, when one man was bitten by a snake a died. His wife notified Beit Din of his death, and they clarified that it was indeed the case. The Tosfot explained that the Beit Din saw the risk of many woman becoming agunot in similar cases, so they was decreed that they would they would be trusted. Beit Hillel reasoned that the Chachamim only trusted in similar cases. The Bartenura explains that they only permitted it in cases where the purported death was close to Beit Din. Beit Shammai however argued that the gezeira was applied even to cases, like in the first Mishnah, where the wife returned from oversea. Beit Hillel in this case ultimately agreed with Beit Shammai.

The Tosfot however questions the need for a decree at all. The Gemara (Ketubot 23a) teaches that according to Rav Hamnuna, a woman is trusted if she says she was divorced. The reasoning is that she would not have the audacity to lie about the matter in the presence of her husband. According to R' Oshaya this is even if her husband is not present when she makes the claim, since she would be concerned that he would learn of her claim. Consequently, in our case she should be believed based on a "migo". In other words, since she has another claim should could have made that would be believed, she should be believed when she says her husband died.

The Tosfot provide two answers. The first answer is that the issue is not one of whether she is lying, but rather one of accuracy. With or without a migo, the concern is that in some situations, she might testify based on the strong impression that he was killed or died, but in reality he survived. Consequently, the rabbinic decree was instituted to trust her in these cases nonetheless.

The second answer is that the opinion in Ketubot that she is believed in the absence of her husband is referring to the Mishnah where she left single and returned claiming that she married and was then widowed while away. That case is an exception since it is only by her word that we know she is married, so we trust her when she says she was widowed. In our case however, the migo would not apply, consequently the rabbinic decree was required.

These two ways of understanding the core issue – believability or accuracy – underpin a different debate where the concern is heightened and the gezeirah does not apply. Returning to the first Mishnah, we learnt that if there was animosity between them or there were wars while they were away then we do not accept her testimony. The Gemara explores other situations that are similar to war. One cases is when there was a famine. Rava maintains that in the case of a famine, it is even worse. In a case of a war, if she claimed that he died in bed after returning from battle she would be believed. This is because her claim would not be based on conjecture, but rather she would have stayed at his bed side and known with certainty. With respect to a famine however, even if she said he died in bed, since she too would have been in danger, she may have left at the point she thought his death was a foregone conclusion in order to save herself. It is not until she says that he died and buried him that she would be believed. The Rashba explains that the woman is never suspected of lying. The concern is only that the situation drove her to draw a premature and potentially incorrect conclusion. The Rashba however cites the Rambam who rules that if in time of war she claimed he was killed in war and she buried him, she is not believed, whereas if she claims he died in bed she is. From this ruling, the Rashba understands that the Rambam disagrees with him and maintains that the concern is whether she is telling the truth.

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